Gammy's case highlights immigration prejudices

Dr Tony Buti MLA (Member for Armadale)

Baby Gammy's case highlights the difficulties those with a disability encounter when trying to migrate to Australia. Photo: Supplied

The story of baby Gammy, his Thai surrogate mother, and the WA couple from Bunbury who brought his ‘healthy’ twin back to Australia has made headline news here and abroad.

There has been an overwhelming condemnation of the couple’s reported actions in leaving Gammy in Thailand. People have cried out that Gammy should live in Australia with his twin sister. Prime Minister Tony Abbott has said that his government would see how they could help Gammy.

The revelation that Gammy’s biological father had been jailed for indecently assaulting two young girls in the 1980s has raised the question of what is best for the baby boy. What is not in question, however, is that Gammy, who has Down syndrome, must not be abandoned. The Australian people in their compassion have made that clear.

Of course, if Gammy’s biological parents are Australian, there is no question that he has a right to live in Australia. However, if they weren’t Australian and wanted to migrate here with Gammy, they would find that Australia’s current migration policy discriminates against those who have a disability.

The Migration Regulations of the 1958 Migration Act require all prospective permanent and temporary migrants to pass a health assessment before being allowed to enter Australia. The stated aim is ‘to protect Australians from threats to public health brought from overseas and to contain public health expenditure’. However, these requirements stem from an outdated view of disability.

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Although the Disability Discrimination Act does include certain diseases under its definition of disability, generally a disability is not a disease. And, as Peter Papadopoulos from the Law Institute of Victoria told the Federal Parliament’s Joint Standing Committee on Migration, it certainly should not be assessed against the same criteria as a contagious disease.

“There is a difference between somebody with tuberculosis or SARS or Ebola and someone who has Down syndrome, and yet they seem to be assessed in the same way and under the same criteria. I think it would remove a lot of the emotion from the debate if we actually separate things that are public health issues as opposed to cost and prejudice issues,” he said.

The Federal Parliamentary Committee’s 2010 Enabling Australia report recommended separate assessments for diseases or conditions perceived to be a threat to public health, and for those conditions linked to disability. The previous federal Labor government rejected this recommendation.

It is not easy to determine how much a person with a disability is going to use the public health system. The Royal Australasian College of Physicians notes “people with disabilities may be rejected because of untested assumptions about future costs associated with this disability. It is difficult to rationally and fairly assess the costs associated with disability or illness over a person’s lifetime, and arguably there is significant room for interpretation in this process”.

Yet even when prospective migrants have the means, and are prepared to pay the health costs for treatment of a family member with a disability, they have been denied migration entry to Australia. This seems unnecessarily discriminatory.

Moreover, if we are talking about costs to our health system, we do not deny entry to Australia of heavy smokers and others whose lifestyle might result in them becoming a drain on our hospital system. So, when it comes to disabilities, it seems that Australian immigration makes value judgments about them.

The Federal Parliamentary Committee received accounts of many cases of discrimination on the basis of disability, with the Migration Act being exempt from the operations of the Disability Discrimination Act. The Committee heard of a number of accounts of family applications which were denied solely because a child in that family had a disability. This is potentially an economic and social disservice to our community.

Take the case of Dr Moeller, a German GP practicing in rural Victoria on a Temporary Long Stay 457 visa. Dr Moeller was a much valued and needed member of the local community. However, the Migration Review Tribunal refused him permanent residency because his 13-year-old son has Down syndrome. Only after media drew attention to Dr Moeller’s contribution as a rural based doctor, and after representation by parliamentarians, did the Minister for Immigration exercise his personal intervention powers to grant Dr Moeller and his family permanent status.

It is reasonable for any nation to assess the costs of accepting an applicant for migration. However, Australia’s policy seems to discriminate harshly against those with disabilities. Sometimes the consequences can be devastating. Take the case of Mr Kiane.

He was an asylum seeker who in 1997 received protection in Australia. His attempt to sponsor his wife and children to join him was rejected because one of his children, an eight year old girl, had cerebral palsy and epilepsy. After four years of unsuccessful appeals, Mr Kiane fatally set fire to himself in protest in front of Parliament House in Canberra. In reporting on the case, the Commonwealth Ombudsman commented that he had “serious concerns about the fairness and professionalism of [the] decision-making process”.

The Parliamentary Committee was informed of a case involving an Australian couple working in Fiji who adopted two children. One had a disability and despite that child achieving a first class medical assessment by paediatricians in New South Wales, the child was rejected under the health requirement.

I am confident that many Australians would be appalled by this situation. As they would be by the much earlier case of an Australian born woman who migrated to the United States and relinquished her Australian citizenship in the days one had to in order to take out U.S. citizenship. She married an American and had a child born in the U.S. Her marriage came to an end and she decided she wanted to return to live in Australia for family support. She was denied a visa because her son was disabled.

It would be a service to the community if Gammy’s case could stimulate our Federal politicians to amend the Migration Act to extend the compassion that Australian people have shown in Gammy’s case to the treatment of potential immigrants with disabilities. Especially, to treat fairly and with humanity families who have a child with a disability.

1 comment so far

I would most certainly be one of the persons supporting changes to the immigration requirements regarding children with disabilities, our daughter was born with a hormone imbalance and has a learning disability, yet she is a very capable young girl and attending normal school successfully, but the immigration states they have a prejudice against her because she has a disability and we are currently waiting to hear the results of our waiver application. It has been 2 long hurtful and distressing years processing, aside from the heavy costing, WHY, WHY, WHY. Boat people are allowed to come into Australia and reside here with any diseases they have and they are the wealthy from their countries who can afford the hugh cost to get on one of the boats to come here.A recent HIV/AIDS 2014 delegates are seeking asylum in Australia and have refused to return home, they have been given homes to live in etc., free legal services to help them while they have deliberately abandoned their families at home in their own countries. WHY should they receive services through this sneaky method of coming to Australia while the Australian Immigration claims a prejudice against my daughter who is going through the correct legal process to come to Australia and who should have a legal right to come to her mother in Australia. My daughter doesn't have any diseases and her disabilities are minimal.